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COURT OF APPEALS
DECISION
DATED AND FILED
April 26, 2011
A. John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Ralph H. Davis,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Oconto County: RICHARD
DELFORGE, Judge. Reversed and
cause remanded with directions.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 HOOVER,
P.J. Ralph Davis appeals a judgment of conviction for
possession of a firearm by a felon. Davis argues the search
warrant for his home was invalid because it was based on an officer’s prior
warrantless entry into his home through an attached garage. The circuit court concluded the officer’s
warrantless entry was excused by the good faith exception, because the officer
did not subjectively intend to enter the home or intend to search for evidence
of any crime. The State abandons the
good faith rationale on appeal. We
conclude that the officer unreasonably invaded the home’s curtilage when he
entered the attached garage. We
therefore reverse the judgment and direct the circuit court to suppress all
evidence discovered during the initial warrantless entry or the subsequent
search.
BACKGROUND
¶2 Davis
filed a complaint alleging his property had been stolen by a forest service
employee. In July 2008, deputy Jason
Fischer and a forest service officer visited Davis’s
residence on State Highway 32 in Oconto
County. Fischer gave Davis a statement form and said he would
return the following day to collect it.
The next day, Fischer and deputy Ryan Zahn returned to the residence to retrieve
the statement form.
¶3 Davis’s
residence consists of a modified trailer home, with an attached foyer
connecting to a two-car garage. The home’s
windowless front entry door opens to the foyer, which is approximately four to
six feet wide and runs lengthwise alongside much of the trailer. All three components—the trailer, foyer, and
garage—are sided with white panels, and they outwardly appear to constitute a
single structure. Below, we include a
photograph of the front of the home, with the garage on the left, foyer and
entry door in the middle, and trailer on the right; and a close-up photograph
of the door and entryway:
¶4 When returning for the statement form, the deputies approached
the front door of the residence and knocked for several minutes without a
response. Zahn decided to “see if
someone was in the back yard.” On his
way, Zahn called into an open overhead garage door and received no response. Zahn proceeded into the garage. Once inside, he “noticed there was an actual
door to the residence” at the back of the garage that was not visible from
outside. Because it was dark in the garage,
Zahn used a flashlight to illuminate his path.
Zahn called for Davis
“half a dozen times” as he walked to the back of the garage. Zahn proceeded through the open doorway and up
a few steps into the windowless foyer.
¶5 Across from that doorway from the garage into the foyer was another
doorway, leading into the trailer. Because
the foyer was dark, Zahn shined his flashlight to light his way. He also shined it down the foyer to the front
door, where Fisher was still knocking, and observed a rifle leaning against the
wall. Zahn then reached the doorway
leading into the trailer. At that point,
Davis appeared.
Zahn explained he was there to collect the
statement, and asked if they could turn on a light because he would “feel safer
if a light was on.” Davis told Zahn he was not welcome and was
trespassing. Zahn ultimately collected
the statement, but not before Davis
asked him three times to leave.
¶6 After returning to the station that day, Zahn learned Davis had a felony
conviction for failure to pay child support.
A search warrant was obtained forty-nine days later, resulting in a
search of Davis’s
home and seizure of multiple firearms.
¶7 Davis
was charged with twelve counts of felony possession of a firearm, contrary to Wis. Stat. § 941.29(2)(a). Davis
moved to suppress all evidence, arguing Zahn had illegally entered his home. The circuit court initially granted the
motion, ruling:
Zahn’s entry into the open garage door to look for the
defendant was legal. However, when the
deputy entered the partitioned and enclosed porch area, it was part of the
defendant’s residence and the deputy did not have any authority to be
there. Any evidence obtained as a result
of that entry will be suppressed.
However, the court later
granted the State’s motion for reconsideration, concluding the good faith
exception applied because “Zahn did not do anything intentionally or willfully
wrong.” The court observed:
[I have] seen all the diagrams, all the pictures, and
to be honest with you, it’s very difficult with those diagrams and those
pictures and the testimony of both [Davis] and [Zahn] to really kind of figure
out, if you’ve never been in there before, exactly where an open garage ends
and the house actually begins.
Davis subsequently pled guilty to one count
of possession of a firearm, with the remaining counts read in. Davis
now appeals.
DISCUSSION
¶8 The Fourth Amendment to the United States Constitution and art.
I, § 11 of the Wisconsin Constitution guarantee that persons shall be free
from unreasonable searches and seizures.
Whether a police officer’s conduct violates the prohibition on
unreasonable searches and seizures is a question of law we review without
deference to the trial court. State
v. Edgeberg, 188 Wis. 2d
339, 344-45, 524 N.W.2d 911 (Ct. App. 1994).
However, we uphold the circuit court’s factual findings as long as they
are not clearly erroneous. Id. at
346. A search within the meaning of the Fourth
Amendment occurs when the police infringe on an expectation of privacy that
society considers reasonable. Id. at
345. A person has no reasonable
expectation of privacy in an item that is in plain view of an officer who has a
right to be in the position to have the view.
Id.
¶9 The protections of the Fourth Amendment extend beyond the
walls of the home to the “curtilage.” Oliver
v. United States,
466 U.S.
170, 180 (1984). “[C]urtilage is the area
to which extends the intimate activity associated with the sanctity of a [person]’s
home and the privacies of life, and therefore has been considered part of the
home itself for Fourth Amendment purposes.” Id. (citation
omitted). The extent of the curtilage
depends upon the nature of the premises, and might be interpreted more
liberally in the case of a rural single-owner home, as opposed to an urban
apartment. See 1
Wayne R. LaFave, Search and Seizure § 2.3(d), 587 n.135 (4th ed. 2004)
(citing Commonwealth v. Thomas, 267 N.E.2d 489 (Mass. 1971)).
¶10 Law enforcement is not, however, completely prohibited from
entering the curtilage. See Edgeberg, 188 Wis. 2d at 347 (“Police with legitimate
business may enter the areas of the curtilage which are impliedly open to use
by the public and in doing so are free to keep their eyes open.”) (citations
omitted). Thus, “if police use normal
means of access to and from the house for some legitimate purpose, it is not a [F]ourth
[A]mendment search for police to see from that vantage point something in the
dwelling.” Id.
“Regarding protected areas in residential premises, a sidewalk, pathway,
common entrance or similar passageway offers an implied permission to the
public to enter which necessarily negates any reasonable expectancy of privacy
in regard to observations made there.” Id. (citations
omitted).
¶11 Here, Davis
argues Zahn unreasonably entered the attached garage. Failing that, Davis further contends Zahn unreasonably
entered the foyer. Conceding that the attached garage should be
considered curtilage, the State responds that the garage and foyer were both
impliedly open to the public because the respective doors were open.
¶12 We accept the parties’ characterization of the attached garage
as part of the home’s curtilage. Indeed,
aside from viewing it as the home itself, it is difficult to imagine a scenario
where the typical attached garage could be considered not curtilage. See State v. Leutenegger, 2004 WI App 127,
¶21 n.5, 275 Wis. 2d
512, 685 N.W.2d 536 (“Published decisions ... consistently hold that an
attached garage is part of the curtilage.”); Los Angeles Police Protective
League v. Gates, 907 F.2d 879, 885 (9th Cir. 1990); State
v. Legg, 633 N.W.2d 763, 768 (Iowa 2001); State v. Blumler, 458
N.W.2d 300, 302 (N.D. 1990); see also
Coffin
v. Brandau, 609 F.3d 1204, 1214-18 (11th Cir. 2010) (Wood, J.,
dissenting) (attached garage is part of the home itself, thus no need to
consider Dunn curtilage factors; citing cases), rehearing en banc granted,
opinion vacated, 614 F.3d 1240 (Aug. 2010).
¶13 While the parties agree the attached garage was curtilage, they
propose different standards for determining whether Zahn’s entry violated the
Fourth Amendment. The State proposes the
general Edgeberg test, which asks whether there is “implied permission
to the public to enter.” Edgeberg,
188 Wis. 2d
at 347. The State then argues there was
implied permission to enter Davis’s
garage because the door was open. Davis, however, contends
we adopted a more restrictive test in Leutenegger. There, albeit in a footnote, we observed:
[I]n a particular case, a house and attached garage may
be situated such that entry through an open garage door to an “exterior” house
door within the garage may appear to be the least intrusive means of
establishing contact with an occupant.
Under such circumstances, [police entry into] an attached garage might be [permissible] for the limited
purpose of making contact with an occupant, similar to some porches.
Leutenegger, 275 Wis. 2d 512, ¶21
n.5. The State concedes that, if Leutenegger
states the test, Zahn’s entry was unreasonable and violated the Fourth
Amendment.
¶14 We see no conflict between the Edgeberg and Leutenegger
tests. Leutenegger effectively
applies the Edgeberg test to the limited circumstance of an attached
garage. As a general matter, it is
unacceptable for a member of the public to enter a home’s attached garage
uninvited. We do not think this premise
is subject to reasonable disagreement.
This premise is true regardless whether an overhead or entry door is
open. Thus, generally, under Edgeberg, an attached
garage will never be impliedly open to public, i.e., police, entry. Leutenegger, however, recognizes
that there may be an exception to that general rule if, in a given
circumstance, it reasonably appears that entry into the attached garage is the
least intrusive means of attempting contact with persons inside the home.
¶15 Therefore, Zahn’s warrantless entry into Davis’s attached garage violated the Fourth
Amendment under Edgeberg, and as the State concedes, the intrusion is not saved
by the potential Leutenegger exception.
There is no dispute that the front entry door appeared to be a less
intrusive means of attempting contact.
Moreover, even if we assumed, arguendo, that entry through the open door
of an attached garage was generally permissible under Edgeberg, it was
unreasonable for Zahn to proceed to the rear of the garage to a door that was
not visible from outside. In fact, it
was even more unreasonable because Zahn had to utilize a flashlight to find his
way through the dark garage. Given these
facts, no person could reasonably conclude that the open overhead garage door
was an open invitation for the public to enter and make contact with Davis inside the home.
¶16 Because Zahn had no right to enter the garage, the plain view
doctrine cannot apply to allow evidence of the firearm he later observed inside
the foyer. See Edgeberg, 188 Wis. 2d at 345-46
(“The officer’s right to be in the place where the view occurs is fundamental
to the validity of what follows.”). The
search warrant police eventually obtained was based on Zahn’s observation. Therefore, all evidence discovered during the
subsequent search must also be suppressed as fruit of the poisonous tree. See Wong Sun v. United
States, 371 U.S. 471, 484-86 (1963).
By the Court.—Judgment reversed and
cause remanded with directions.